Key Points

  • The Fifth Circuit affirmed summary judgment for El Paso Officer Steven Jaso on qualified immunity, assuming a Fourth Amendment violation but holding that no clearly established law barred his single taser use against Armando Navejas, who had ignored commands and thrown objects at him.
  • The panel distinguished Hanks v. Rogers, Newman v. Guedry, and Ramirez v. Martinez as cases involving gratuitous force against non-resisting or already-restrained suspects.
  • Pattern evidence drawn from two other district court decisions and raised for the first time on appeal was waived, and the two incidents presented below postdated the October 2021 tasing.
  • The single-incident exception did not apply because Jaso had received use-of-force, less-lethal-force, and 44 hours of academy mental-health training plus three refresher courses. The failure-to-discipline, CIT-scheduling, and ratification theories also failed.
  • The court denied a remand for more discovery because the estate never invoked Rule 56(d), and 28 U.S.C. § 2106 does not reopen discovery based on post-judgment allegations.

A federal appeals court ruled on Oct. 8 that an El Paso police officer is immune from a damages suit over his tasing of a 70-year-old man with dementia, because the man had ignored the officer's commands and thrown objects at him before the officer fired the taser once.

A three-judge panel of the U.S. Court of Appeals for the Fifth Circuit affirmed summary judgment for Officer Steven Jaso and for the City of El Paso. Judge Stuart Kyle Duncan wrote the opinion for the panel, which also included Judges Jones and Southwick. The man, Armando Navejas, was taken to the hospital after the October 2021 encounter and later died.

The decision leaves in place the dismissal of the excessive-force suit that his daughter, Debbie Navejas, brought on behalf of his estate. The panel held that Jaso was protected by qualified immunity. It also rejected the estate's claims against the city and refused to consider evidence the estate raised for the first time on appeal.

Navejas suffered from dementia and Alzheimer's disease, and his family had previously sought police help when he wandered from home, according to the opinion. At about 2:14 a.m. on Oct. 24, 2021, his wife, Josephine, called police and reported that he had become violent and tried to strangle her when she tried to give him his medicine. The dispatcher recorded that he had no access to weapons and that his wife was not then in immediate danger.

According to Jaso, Navejas ignored orders to stop, charged him and threw an object that struck him in the shin, then threw a second object that barely missed. Jaso believed Navejas had thrown a "broken half brick" at him. The estate disputed that account. It said Navejas was "slowly and gingerly walking" and pointed to evidence that at least one object was a lightweight piece of shrub or wood.

Surveillance video showed Navejas heave a larger object, apparently a potted plant, toward Jaso. The object landed on the hood of a parked car. Within seconds, Jaso ran around the car and tased Navejas once in the back. Navejas fell forward, was knocked unconscious by the fall and was handcuffed by assisting officers.

The panel assumed, without deciding, that the tasing violated the Fourth Amendment and resolved the claim on the clearly-established-law question alone. "Even resolving any genuine factual disputes in the plaintiff's favor, no precedent clearly forbade Jaso from deploying his taser once against the erratic, actively resisting suspect he confronted," Duncan wrote.

The estate argued that Navejas posed little threat, that his age and condition called for de-escalation, and that Jaso should have given him more time to comply. It relied on three Fifth Circuit decisions, Hanks v. Rogers, Newman v. Guedry and Ramirez v. Martinez. Duncan wrote that those cases "involved officers' gratuitous use of force against non-resisting or already-restrained suspects." In Newman, officers beat and tased a man for making a suggestive comment during a traffic stop. In Ramirez, officers tased a man after he was handcuffed and lying face down.

"Those cases are quite a ways from this one," Duncan wrote. He listed the undisputed facts: a domestic-violence call reporting that Navejas had tried to strangle his wife, repeated commands that Navejas ignored, objects thrown at Jaso, and a single taser use. The opinion said "there was nothing 'passive' about Armando's erratic behavior."

The claims against the city required proof that El Paso was deliberately indifferent to a known or obvious risk of the violation. That ordinarily requires a pattern of similar violations. In the trial court, the estate cited two incidents involving the police department and mentally impaired people, the fatal shooting of Martin Herrera and the tasing of 16-year-old Julian Pino. Both occurred years after Navejas was tased.

On appeal, the estate cited two other district court decisions that it said described pre-2021 encounters between El Paso police and mentally impaired people. The panel held that the estate waived that evidence by failing to present it below. "We will not undertake that record-dependent inquiry for the first time on appeal," Duncan wrote.

The panel also rejected the estate's reliance on the single-incident exception, a rare route to liability that generally applies when a city provides no training at all on the relevant constitutional duty. Jaso had completed seven use-of-force classes, 25 hours of less-lethal-force training, 44 hours of academy mental-health training and three seven-hour refresher courses. Whatever the merits of the estate's expert's criticism, Duncan wrote, "this is not a case in which the City provided no training concerning the relevant constitutional duty."

The court rejected the estate's three remaining theories against the city. On discipline, the panel said the expert's view that the department should have disciplined Jaso "tells us nothing about a preexisting pattern of failing to discipline other officers." The department's specialized Crisis Intervention Team had no shift between midnight and 8 a.m. The panel found that the department had scheduled the unit around peak demand. The court held that the Disciplinary Review Board's exoneration of Jaso did not amount to ratification, because his conduct did not violate clearly established law.

The panel also refused to send the case back for more discovery. The district court had granted the parties a 78-day extension instead of the 120 days they sought, and the estate never invoked Rule 56(d). Duncan wrote that 28 U.S.C. § 2106 "does not furnish a party appealing a grant of summary judgment a general opportunity to reopen discovery whenever later allegations suggest additional evidence might exist."

The judgment of the U.S. District Court for the Western District of Texas stands in full. The district court had also dismissed the estate's Texas claims for negligent hiring, training and retention on governmental-immunity grounds, and the panel held that the estate abandoned those claims by not challenging that ruling in its opening brief.